(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges an order of the first respondent in M.H.S.Confdl.No.120/2008 dated 31.7.2008 whereby the son of the petitioner was detained under the provisions of the the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) terming him as a "Goonda".
2. The Court heard the learned counsel appearing for the petitioner and perused the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that the detenu, Murugan was involved in four adverse cases viz., in Crime No.708/2008 under
Sections 353,307, 379 of the IPC and 132 read with 177 Motor Vehicle Act; in Crime No.714/2008 under
Section 379 of the IPC; in Crime No.722/2008 under
Section 379 of the IPC and in Crime No.723/2008 under
Section 379 of the IPC, which were all registered in Tenkasi Police Station and in one ground case in Crime No.311/2008 under
Section 294(b),323,324,506(ii) of the IPC registered in Courtallam Police Station, the detaining authority after looking into the materials available formed his opinion and recorded his satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and hence, he was to be ordered to be detained as a "Goonda' as defined under the Act and accordingly, made the order dated 31.7.2008, which is the subject matter of challenge before this Court.
4. Advancing his arguments on behalf of the petitioner, learned counsel appearing for the petitioner raised the following two grounds attacking the order of detention:-
(i) Firstly, the order of detention came to be passed on 31.7.2008 following alleged involvement of the detenu in the four adverse cases and in one ground case. The detenu did not file any bail application in the first adverse case and ground case. Insofar as other cases viz., adverse cases 2, 3 and 4 are concerned, bail applications were filed and were pending before the Judicial Magistrate, Thenkasi. Thus, out of the five cases, bail applications were not filed in two cases and the bail applications filed in three cases were pending. But, the detaining authority has pointed out in his order that there was a likelihood of the detenu coming out on bail. Such an observation of the detaining authority is without material and without basis. It was a mere apprehension in the mind of the detaining authority. Hence, the order suffers from this point of view.
(ii) Secondly, there was an undue delay in consideration of the representation. The detenu made the representation on 16.9.2008, the same was received on 17.9.2008, remarks were called for on 22.9.2008 and remarks were received on 29.9.2008. Thus, there were delay of 7 days. In the absence of an explanation, it has got to be termed as undue delay, which has caused prejudice to the right of the detenu and hence, the order of detention has got to be set aside on this ground also.
5. The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions and paid its anxious consideration on the submissions made.
6. It is not in controversy that the detenu, Murugan was involved in four adverse cases and in one ground case as noted above. As could be seen from the materials available and admitted by the State that the detenu made bail applications in adverse cases 2, 3 and 4 and the bail applications were pending. However, no bail application was filed in the ground case. While the matter stood thus, the detaining authority has pointed out in his order of detention that there was a possibility of the detenu coming out on bail. Such an observation made by the detaining authority was without any material whatsoever. Hence, it would be quite clear that the detaining authority prejudged the situation and also the order that was to be made in the bail applications. Hence, the order suffers from that point of view.
7. Apart from that, as rightly pointed out by the learned counsel for the petitioner, the Court is able to notice delay in consideration of the representation of the detenu. He made the representation on 16.9.2008, the same was received on 17.9.2008, remarks were called for on 22.9.2008 and remarks were received on 29.9.2008. Thus, there were delay of 7 days. Out of these delay, 2 days were found to be holidays. The delay was found to be not explained. In a given case where such delay is noticed, a duty is cast upon the State to explain the reasons for such delay and if not, it is termed as unexplained undue delay. It is an indicative of the fact that the authorities have not exercised their promptitude in disposing of the representation. It also touches the constitutional right of freedom of the individual. Thus, the delay would certainly cause prejudice to the right of the detenu.
8. Hence, on these grounds, the order of detention has got to be made undone by upsetting. Accordingly, the order of detention is set aside and the detenu is directed to be set at liberty forthwith unless he is required in connection with any other case in accordance with law. The Habeas Corpus Petition is allowed accordingly.
asvm To
1.The District Collector and District Magistrate, Tirunelveli, Tirunelveli District.
2.The Secretary, Government of Tamilnadu, Prohibition and Excise Department, Fort Saint George, Chennai - 9.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.